The Donation of Human Organs

Organ transplantation raises difficult ethical questions about
people’s claims to determine what happens to their bodies before
and after death. What are these claims? What would it be to respect
them? How should they fit with the claims of organ donors’
families or the needs of people whose own organs have failed? And then
how should organs be allocated? Who should get priority and why? As
with other topics in applied ethics, satisfactory answers require
knowing the relevant facts, in this case about organ
transplantation.

In summary form, the following empirical claims about organ
transplantation are widely accepted:

Organ transplantation is a successful treatment for organ failure
in many cases.

Organ transplantation is cost-effective (Machnicki et al.
2006).

Most organ transplantation nowadays is routine, not experimental
(Tilney 2003; Veatch and Ross 2015). The organs in question are the
kidney, liver, heart, lung, pancreas, and intestine. This entry
discusses only the “routine” cases. Experimental ones
raise additional questions, but these are more properly dealt with as
part of the entry on
the ethics of clinical research.
Present examples of experimental transplantation include faces and
uteri (Catsanos, Rogers, and Lotz 2013; Freeman and Jaoudé
2007; Wilkinson and Williams 2015).

Transplant organs are often scarce. Many people who would benefit
from receiving a transplant do not get one.

Organs are taken from the dead and the living. Each category raises
separate problems and we begin with dead organ donors.

1. Organ Retrieval from the Dead

The dead are the major sources of organs for transplantation. For a
long time deceased donors came from those declared brain dead, that
is, those who have irreversibly lost their brain function. In recent
years, however, many donors have come from those who have died in the
sense of circulatory death. Both donation after brain death and
donation after circulatory death invite the important
philosophical—not just medical—question “what is it
to be dead”? (See the entry on
the definition of death.)

Even though far more people die than require new organs, organs are
scarce. Numerous factors affect the retrieval of organs from the dead.
These include: the nature of people’s deaths (in only perhaps
fewer than 1% of deaths can organs currently be taken, and countries
vary according to the number of strokes, car crashes, shootings, and
other causes of death that lend themselves to retrieval); the number
of intensive care units (ICUs) (most donors die there and fewer ICUs
makes for fewer donors); the medical factors that determine whether
organs are retrieved successfully; the logistical factors that
determine the efficient use of available organs; the extent of public
awareness of transplantation; and the ethical-legal rules for consent
that determine who is allowed to block or permit retrieval. Although
most of these factors do not raise philosophical questions, it is
important to realize that the main factor that does—the
ethical-legal system for consent—is only one of many that affect
retrieval rates, and nowhere near the most important at that. One
should also bear in mind that the variety of factors plus
unreliability or incomparability in statistics about retrieval mean
that it is hard or impossible to have confidence in many of the causal
claims about how consent rules affect retrieval rates.

This section explains the rules for consent as they operate in
practice in most countries. It then outlines certain reform proposals,
mentions the claims of the main affected parties, and, in the light of
those claims, evaluates those reform proposals.

1.1 Organ retrieval in practice

In nearly all countries with a transplantation program, the following
is a broadly accurate description of organ retrieval in practice,
although different countries, and regions of countries, do differ in
nuanced ways, for instance in how the option of donation is presented
to families; and the nuances may affect retrieval rates (Price 2000;
T.M. Wilkinson 2011).

If the deceased made a refusal known, either formally (e.g., on a
register) or informally, organs will not be retrieved.

If the family refuses, organs will not be retrieved.

If the deceased is not known to have refused, suitable organs will
be retrieved if the family agrees (some jurisdictions) or does not
refuse (other jurisdictions).

The first point to make from this description is that nearly all
countries have, in practice, a “double veto” system. Even
if the family wants to donate, the deceased’s objection will
veto retrieval. Even if the deceased agreed to donate, the
family’s objection will veto retrieval. (The U.S. has partial
exceptions discussed shortly.) The family’s veto is in many
countries, such as the U.S., the U.K., and most nations of continental
Europe, a creation of the medical profession. Doctors will not take
organs from consenting dead people whose families object even though
the law permits retrieval. A lesson in method follows: when describing
the practice of organ retrieval, looking at the law alone is
inadequate.

A vital second point is that in virtually no country is the consent of
the deceased required before organs may be taken (Price 2000). When
the deceased has not refused, the family’s agreement is enough
to permit retrieval.

1.2 Proposals for reform

The persistent scarcity of organs has given rise to several proposals
to reform the system for consent. The main ones are:

Encourage or mandate clearer choices by the deceased.

End the family’s power of veto.

Change defaults so that organs are taken except when the deceased
formally objected.

Conscript organs.

Pay for organs.

(1)–(4) are discussed below; for (5), see the entry on
the sale of human organs.
Before evaluating the proposals, we describe the claims of the main
affected parties. In determining what the rules for retrieval ought to
be, three main claims are in play. These are the claims of the
deceased, the deceased’s family, and potential recipients of
organs. Transplant professionals have claims too, which are probably
best thought of as matters of professional conscience, but these are
not discussed further here.

The dead. The “claims of the dead over their
bodies” is almost invariably shorthand for “the claims of
the living over their post-mortem bodies”, and that is how it
will be understood here. While it is widely accepted that living
people have strong claims over their own bodies, especially when it
comes to vetoing invasions of their bodily integrity, it is much less
widely accepted that the dead have such claims. Among the views that
the dead have claims, we may distinguish between those which hold that
events after death can harm the interests of the formerly-living and
those which hold that it is only the fears and concerns of the living
that have weight. Thus if it is asked why we should attach weight to a
person’s refusal of organ retrieval, the first sort of view may
say “because to take the organ of a person who refused damages
his interest” and the second sort may say “because the
anticipation of retrieval against his wishes will be bad for the
living person”. The first sort of view is the subject of
posthumous interests (see the entry on
death).

Even if we accept that people may have posthumous interests, the
content of those interests will often be unknown or indeterminate.
Many people do not think about organ donation, which is quite
reasonable given the low chance that they will die in such a way as to
permit organ retrieval. In cases where they have not thought or not
revealed their thoughts, it seems plausible to say that they have no
interest for or against retrieval.

In some cases, the claims of the deceased will be in conflict with
those of their families and/or the claims of potential recipients. The
question arises of how to weigh the claims of the deceased. Some
writers accept that the deceased can have posthumous interests, but
believe them to be of little weight, particularly compared with the
needs for organs of those with organ failure (Harris 2002, 2003). They
may believe that people are not affected by their posthumous interests
being set back or they may think the fear of retrieval is of little
weight. In their view, any roughly consequentialist calculation would
justify setting aside the objections of the deceased to organ
retrieval. Other writers argue that if we accept posthumous interests
and accept that people have strong claims over their bodies while
alive, we have grounds to attribute rights to the living over their
post-mortem bodies (T.M. Wilkinson 2011). Such a view needs to explain
how posthumous rights are possible, since some writers in political
and legal theory believe that rights could not protect posthumous
interests for technical reasons to do with the nature of rights
(Steiner 1994; Fabre 2008).

The family. If one accepts that the deceased have a claim,
then families may acquire a claim by transfer. That is, the deceased
may delegate decision-making power to their families, as is possible
in some jurisdictions. Some authors have even suggested that the
organs of the dead should be treated as something akin to inheritable
property (Voo and Holm 2014). Acquiring a claim by transfer however is
no more controversial than the deceased’s having a claim in the
first place. What is the subject of dispute is whether the family
should have a claim in their own right which could be set against the
claims of the deceased or potential recipients.

Some argue for family decision-making on cultural grounds (Chan 2004,
in the context of medical decision-making generally). For them, giving
priority to the deceased is unacceptably individualist either in all
cases or in cases where individualism is culturally abnormal
(Boddington 1998). Among the difficulties for such views is to explain
why, if individualism is mistaken, the decision about retrieval should
be made by individual families rather than in the interests of the
wider community, which may well require taking organs against the
families’ wishes so as to meet the needs of potential
recipients.

If families were overridden, it is reasonable to suppose that they
would suffer extra distress: that is, even more distress than they
would already be experiencing upon the often untimely and
unanticipated death of the relative. Few writers deny that avoiding
distress would be a good reason, although some believe (without much
evidence) that a norm of taking organs and overriding families’
opposition would come to be accepted (Harris 2003). What is
controversial is how strong a claim the family would acquire not to be
distressed.

Finally, families are not monolithic, and sometimes they disagree
among themselves about whether to endorse organ retrieval. How
internal disagreement affects the families’ claims is something
not widely discussed.

Potential recipients. As was said at the start of this entry,
potential recipients stand to gain a great deal from receiving an
organ in terms of both the quantity and quality of their lives. They
are also badly off, in a medical sense, in that they suffer from organ
failure. Utilitarian, prioritarian, and egalitarian views of justice
and benevolence would, therefore, give considerable weight to the
needs of potential recipients.

We now turn to consider the proposals for reform listed above.

1.2.1 Encourage or mandate clearer choices by the deceased

According to some, an important cause of family refusal of organ
retrieval is uncertainty about the wishes of the deceased. Families
that do not know what their relatives wanted often default to
“no” (den Hartogh 2008a). To avoid the default, some
writers would encourage people to decide about donation in a way
others will know, for instance by paying them (De Wispelaere and
Stirton 2010) and others suggest mandating choice by, for instance,
withholding driving licenses from those who do not choose. The
suggestion is not, or not in all cases, that people be steered into
agreeing to donate or penalized if they refuse. It is that people be
steered to make clear choices, yes or no.

Some ethical questions are raised by penalizing people for not
choosing or for introducing monetary encouragement. It may be replied
that no one is pressured to donate, as opposed to choose; that the
penalties or encouragement are slight; and that transplants are of
such value to the needy that any ethical objections are easily
overridden. The real difficulty is that mandated choice seems unlikely
to increase retrieval rates by much. In some places where it has been
tried (such as the U.S. states of Virginia and Texas), people who are
pressured to choose themselves default to “no” (den
Hartogh 2008a). In New Zealand, where one must choose as a condition
of getting a driving license, the choice is often ignored by intensive
care doctors and families because it does not seem like a genuine
decision.

1.2.2 End the family’s power of veto

Families usually have at least the de facto power to veto
retrieval from the deceased, even those who adamantly wanted to donate
their organs. Does this power not give excessive weight to the
interests of families as against the interests of both the deceased
and potential recipients?

As it happens, it appears that families rarely override the
donors’ known wishes. Furthermore, it seems unlikely that many
people would want to donate no matter how upset their families were,
so allowing families to veto retrieval is unlikely to be against the
all-things-considered wishes of many of the deceased.

In any case, transplant professionals have a practical reason not to
override the family: they fear bad publicity. One version of their
argument is this:

there are already urban myths about people having their deaths
hastened so as to make their organs available; few people understand
brain-death; donation would fall if families publicly claimed that
their views were overridden and their relatives were not dead; thus
ending the family veto would reduce the supply of organs, not increase
it.

If the practical argument is correct, it is understandable why
families have a medically-created power of veto. Moreover, it is hard
to see that the veto is contrary to the claims of the deceased. While
the deceased may have a claim to block retrieval, no one has a claim
that other people use his or her organs. If the veto is in the
interests of potential recipients, doctors may refuse the offer of
organs by the deceased without infringing on the deceased’s
claim (T.M. Wilkinson 2007a).

Some states in the U.S. have implemented “first person”
consent laws that mandate overriding families in cases where the
deceased has ticked the “donate” box or its equivalent on
a form. It is unclear how far such laws are upheld. In principle, it
might be possible to get some data on the effect of overriding
families on the organ supply, thus testing the practical argument in
the previous paragraphs. Ethically, first person consent laws arguably
do not respect the wishes of the deceased, at least in cases where the
deceased donors who ticked the box did not fully grasp that their
families’ wishes would be overridden.

1.2.3 Change defaults so that organs are taken except when the deceased formally objected

This proposal favors what is variously called “opt-out” or
“presumed consent”. A “hard” version would
take organs even when the deceased’s family objected (with all
the problems mentioned in the previous sub-section); a
“soft” version would allow the family to veto retrieval.
The leading argument for opt-out claims that many people want to
donate but through inertia do not get round to opting in. In an
opt-out system, inertia would prevent them opting out so their organs
could be taken and, since most people do want to donate, the deceased
would be more likely to get what they want and more organs would be
available (Thaler and Sunstein 2008).

The proposal envisages taking organs without the explicit consent of
the deceased. One may object that people’s rights over their
bodies establish a duty of non-interference which can be lifted only
with the consent of the rightholder (Kluge 2000). A different
objection points out that taking organs without consent would
sometimes be against the wishes of the deceased; and while not taking
would be against the wishes of the deceased who had wanted to donate,
taking in error is a worse mistake than not taking in error, because
people have a right not to have their organs taken but no right to
have their organs taken (Veatch and Ross 2015). As against these
views, we must dispose of the bodies of the dead in some way, even if
not consented to; and we give unconsented medical treatment to the
unconscious even though some would have opposed treatment (Gill 2004;
T.M. Wilkinson 2011).

Is it right to use the bodies of the deceased without either their
consent or knowing that they had wanted the use? The question is an
important and difficult one. It is very important to note, however,
that this question is raised by virtually all existing organ
procurement systems To restate: all systems allow organs to be
taken without the deceased’s consent. It follows that the
simple inertia argument for shifting defaults is flawed. There is no
default of non-retrieval in the absence of the deceased’s
consent. Other arguments for variations of opting out turn on the
empirical question of effects on retrieval. Since many different
factors affect retrieval rates, it is often hard to be confident about
the difference that changes to consent would make.

1.2.4 Conscript Organs

The idea of conscription is to take organs in all suitable cases even
when the deceased or family objected (except, perhaps, in cases of
conscientious objection). Unlike the other reform proposals,
conscription seems to have little political support. Nonetheless, some
powerful philosophical arguments can be given for it. One argument,
mentioned above, compares the strength of the interests of the
deceased, families, and potential recipients, and claims that the need
for transplants of those with organ failure is much greater than the
needs of the deceased or their families (Kamm 1993; Harris 2002,
2003). Another argument draws an analogy with the relief of poverty.
Many think the state may use its coercive powers to transfer material
resources from those with a surplus to those with little. In other
words, we think that people have welfare rights to resources. One way
to fulfill those rights is to tax the estates of the deceased. By
parity of reasoning, because organs are also resources and no longer
of use to the dead, they too should be coercively transferred to
fulfill the welfare rights of those with organ failure (Fabre
2006).

Conscription may be politically infeasible or be subject to practical
objections. But what of principled ethical objections? One could point
to the distress that families would suffer (Brazier 2002), but what of
the distress of the families of people who die for want of an organ?
One could point to the interests of the deceased, but the arguments
above need not deny that the deceased have interests; they claim that
those interests are outweighed. One could claim that the deceased have
rights that protect their interests and deny that potential recipients
have rights to organs. Even if the deceased have rights and potential
recipients do not, it would have to be shown that the rights of the
deceased are not outweighed by the needs of those with organ
failure.

1.2.5 Further Proposals

As noted above, many factors affect the supply of organs and there are
diverse clinical, logistical, and marketing attempts to increase
supply. Some of these raise ethical questions. Consider preparing for
organ retrieval patients who are not yet dead, for example by
ventilating patients thought likely to die in the near future. If the
preparatory measures are permitted, more donors would become available
than if they are not. But these measures would not be done for the
therapeutic benefit of the patient. They would be contrary to a duty
to act only in the best interests of the patient, at least when
“best interests” are understood as only medical interests.
On the other hand, if “best interests” were understood
more broadly, as explained in
2.1
below, then in some cases, such as where the patient had agreed to
donate, the preparatory measures might be in the patient’s
non-medical interests. In any case, the measures need not be against
the patient’s medical interests.

As for social marketing (or “nudging”) to try to increase
consent rates, these might target potential donors, as with campaigns
to increase the number on a donor registry, or the families of those
who have died, say by using specially trained people to ask their
consent. In some cases, these ideas invite the question of whether
they involve manipulation and whether any consent obtained is valid
(Rebonato 2012; T.M. Wilkinson 2011). They also raise again the
question of how much it would matter if consent were not valid if the
supply of organs increased.

2. Organ Retrieval from Living Donors

The successful early transplants used organs taken from living donors.
For a long time the hope was that, when technical problems were
overcome, enough organs would be supplied by dead donors (Price 2009).
That way, healthy living people need not undergo the risk and
discomfort of non-therapeutic organ retrieval. That hope however was
false and the persistent shortage of donors has led to the increasing
use of living donors. Living donors are now the source of almost half
the kidneys transplanted in the U.S. and nearly a third in the U.K.. It
has been estimated that 27,000 living donor kidney transplants occur
worldwide each year and constitute 39% of all kidney transplants
(Horvat et al. 2009). Not only are kidneys transplanted from living
donors; so too are parts of livers and lungs, although on a much
smaller scale. The rules governing donation have generally become more
permissive, allowing donations from close genetic relatives, then
spouses, then partners and friends, and, in some jurisdictions, even
strangers.

The primary ethical question raised by living donation is to do with
the risk of having an organ taken. Having an organ taken imposes risks
of death, disease, and discomfort from trauma, infection, the use of a
general anaesthetic, and the loss of all or part of an organ (although
the liver will usually regenerate, replacing the part removed). These
risks are not negligible. However, the risk of death is not enormous.
Focusing on the kidney, the most frequently donated organ and the
safest to take from live donors, it has been estimated that the risk
of death from kidney retrieval is 1/3000. There appears to be no
difference between healthy screened living kidney donors and the
general population in long-term survival and the risk of kidney
failure. (Ibrahim et al. 2009). That said, the general population is
less healthy on average than the healthy screened living donors, who
do in fact undergo some extra risk of long-term renal failure as a
result of one kidney being removed (Grams et al. 2016).

Under what conditions, if any, is it permissible to impose such a risk
on someone who will receive no therapeutic benefit? For competent
people, it is overwhelmingly accepted that their valid consent is a
necessary condition of morally permissible retrieval. (A very few
writers disagree, e.g., Rakowski 1991 and, less clearly, Fabre 2006).
But even if consent is necessary, it may not be sufficient, and a
further question is how much risk it is permissible to impose even on
those who consent. Living donor transplantation also raises important
questions about the validity of consent and about whether organs may
ever be taken from healthy non-competent people, such as children.

2.1 “Do no harm”

Medical ethics traditionally instructs clinicians not to harm people.
Taking organs from healthy people does seem to harm them, so living
donor transplantation appears contrary to traditional medical ethics.
One reply is to say that the “do no harm” rule is a relic
of the medical profession’s paternalism; if people want to
donate their organs and know what they are doing, why stop them
(Veatch and Ross 2015)? This reply raises the difficult problem,
discussed below, of how far consent justifies harm. Another reply is
to say that taking organs from living donors may not be
all-things-considered harmful to them (Spital 2004).

Suppose a person were prevented from donating an organ. On the one
hand, the person would avoid the risks of physical harm. But, on the
other, the person may suffer what are, in the medical literature,
called “psychosocial harms”. These could include
loneliness from losing a relative, having to act as caregiver to a
person with organ failure, and survivor guilt. In philosophical terms,
a person may also suffer vicarious harm. People whose welfare is
intertwined with others suffer a loss when the other person does
(Feinberg 1984; Raz 1986). Quite possibly, then, a person who donates
may not suffer harm all-things-considered, that is, when all the
different instances of harm are weighed up.

The “do no harm” argument against living donation is not
widely accepted—that is why living donation proceeds apace.
Nonetheless, even if the physical harm can be outweighed by the need
to avoid other harms, or by consent, or both, one may think that as a
matter of policy living donation should be discouraged. One fear is
that increasing the use of living donors relieves the pressure to find
ways to get more organs from other sources, notably the deceased.

2.2 Valid Consent

Assuming consent is ethically necessary before taking organs from
living competent people, questions arise about what makes consent
valid. The usual answer in medical ethics is that consent must be free
(voluntary), sufficiently informed, and made by someone with the
capacity (competence) to consent. Thus, in the context of living
donation, people must know what living donation involves, including
the risks to them and the chances of success for the recipient, they
must be able to decide freely whether to donate, and they must be
competent to do so.

Can people freely give consent when considering whether to donate to a
close relative? It may be thought that consent in such a case is
suspect because potential donors would be: (1) desperate to save their
relatives (2) subject to a feeling of moral obligation or (3) subject
to family pressure. The first two reasons are not good ones. People
give valid consent in other desperate circumstances, for instance to a
lifesaving operation, and acting out of a reasonable sense of moral
obligation is a way of exercising one’s freedom rather than a
constraint upon it (we consider below unusual senses of obligation in
the context of religious stranger donation) (Radcliffe-Richards 2006;
Wilkinson and Moore 1997).

Family pressure is different. Family pressure may take the form of
credible threats of violence, in which case the potential donor is
coerced and any consent invalid. Family pressure may be felt as a form
of moral obligation on the part of the donor, in which case (see
above) consent would not be made invalid for that reason. Somewhat
harder to think through is family pressure that consists of the
implicit threat of ostracism. On the one hand, that pressure may be
very effective. On the other, it works by family members withdrawing
their goodwill, something people are generally entitled to do. Some
views of coercion and valid consent imply that consent to avoid
ostracism would be valid (e.g., Nozick 1974); others do not (e.g.,
Cohen 1988). As it happens, transplanters will often furnish reluctant
donors with “white lies” to enable them to avoid donating
while retaining the appearance of honour. For instance, reluctant
donors may be told to say they are clinically unsuitable on anatomical
grounds. Whether “white lies” are mandatory or even
permissible depends partly on resolving the question of when family
pressure undercuts valid consent (den Hartogh 2008b).

Many living donor programs use extensive psychosocial screening as
well as a lengthy consent process (Price 2000). Potential donors are
screened for physical health, which is largely uncontroversial, but
they are also screened for their motivations. The typical advice is to
screen for excessive sense of duty, undue influence, unconscious
internal neurotic influences, and abnormal emotional involvement.
Screening of this nature is more controversial since it involves
making difficult judgments about what counts as excessive in a sense
of duty, undue in influence, and abnormal in emotional involvement,
and it requires spotting neurotic influences. At least in the past,
some critics have thought that transplant professionals have overused
their power to refuse people as donors (MacFarquhar 2009).

To take one example, consider whether a member of a religious sect,
such as the Jesus Christians, should be allowed to donate to a
stranger. It may be thought that such a person could not be giving
valid consent, perhaps because of what a sect has done (the
“brainwashing” worry) or because of some psychological
vulnerability. However, it is often difficult to decide whether a way
of influencing someone is illegitimate or whether motivations and
beliefs are signs of mental illness (see entry on
mental illness).

2.3 The moral force of consent

Assuming a potential donor would give valid consent, how far would
that justify retrieval of organs? The “do no harm” rule
implies that people should not be harmed even with their consent
although, as was said earlier, some living organ donation may not harm
the donor all-things-considered. Suppose a man wanted to donate his
second kidney to his second son, having already donated a kidney to
another son, thus paying the price of a life on dialysis. Suppose a
parent wanted to donate her heart to her child, thus causing her own
death. Would transplant teams act wrongly if they took organs in such
cases? And—what is a separate question—should they be
allowed to?

It cannot be assumed that, in these desperate cases, the parents would
be all-things-considered harmed by retrieval. Whether they are would
depend on how the correct specification of harm handles vicarious
harms and psychosocial harms. Perhaps a parent could be better off
dead than to have to live without her child (which is not to say that
her reason to donate is self-interest).

Suppose, though, that genuinely consensual organ retrieval would
all-things-considered harm the donor. One way to try to decide when
retrieval should nonetheless be permitted is to compare the values of
autonomy with well-being. The question would then become an aspect of
familiar debates about paternalism and the limits of consent. Living
donation does have the unusual twist that, if one were to prevent
donation, one would prevent an act of considerable value to a badly
off person, the potential recipient. Moreover, to prevent living
donation would be dissimilar to many acts of state paternalism, such
as mandatory wearing of seat belts or the prohibition of certain
drugs, in that donating an organ would not generally be the result of
inattention, weak-will, addiction, or excessive short-sightedness.
Because of its value to the recipient and because donors’
choices are not obviously flawed, living donation of the sorts that
actually take place should be allowed and seems ethically
permissible.

What about organ donation that goes beyond what is currently
permitted, such as the donation of the second kidney or donation of an
organ necessary for life? Liberal democracies do not generally allow
consent to be a defense to bodily harm at or well below the level of
death (Price 2000), but should they? The answer turns in part on how
far third parties—transplant teams in this case—may
inflict harms on those who genuinely give autonomous consent or, to
put it another way, the extent to which autonomous people can waive
their rights of bodily integrity. But policy considerations are also
relevant. Can one be sure that consent is genuine? Would some people
be forced into consenting in a way that a screening process would fail
to detect? If so, how much weight should be attached to cases where
organs are taken without genuine consent? These questions arise for
living donation in general, but the errors are worse in cases where
severe harm or death is the certain consequence of donation. (The
questions also arise in the debates about whether voluntary slavery or
euthanasia should be permitted (Feinberg 1986)).

2.4 Incompetent living donors

Although rules and practices governing living donation have generally
become much more permissive, they have become stricter in the case of
incompetent donors (Price 2000). In fact, live children have never
been used as a source of organs in the U.K. (Brazier and Cave 2011) and there have been only 60
cases in the U.S. between 1987 and 2000 (out of approximately 40,000
live kidney donations) (Ross et al. 2008). As the discussion above of
psychosocial screening implies, competence is not always easily
determined, but let us assume in this section that we are considering
clearly incompetent donors, namely relatively young children and
people with severe mental disabilities or illnesses.

If valid consent were a necessary condition of ethically permissible
organ retrieval from the living, then retrieval from incompetent
donors would be wrong. However, it is not clear why consent should be
a necessary condition in all cases rather than only in those cases
where people are capable of giving it.

Several arguments have been given for permitting retrieval from
incompetent people. Utilitarian arguments appear to permit retrieval
because the donor loses less than the recipient gains. On the face of
it, however, that argument would support organ conscription from
living competent people too. Some people have argued in specific cases
that the person would have wanted to donate, thus using the idea of
substituted judgment familiar in other cases of deciding for
incompetent patients. However, substituted judgment is misapplied in
cases where the person is not, and never has been, competent (Buchanan
and Brock 1990). More plausibly, it may be thought that, at least in
some cases, incompetent donors are not harmed by donating an organ. If
a child’s donation would save the life of a sibling with organ
failure, the donor may gain in the psychosocial and vicarious senses
described above in the discussion of the “do no harm”
rule. Donors may be no worse off for donating, in which case organ
retrieval would not infringe the “do no harm” rule
(T.M. Wilkinson 2011).

Even if organ retrieval from an incompetent donor were ethically
permissible in a given case, it may be that policy considerations,
such as the risk of abuse, would justify an outright ban. Some
writers, though, believe that legal safeguards would be enough to
protect incompetent donors from abuse (Munson 2002).

3. The Allocation of Organs

The scarcity of organs creates an allocation problem. A great deal has
been written in philosophy on the principles of the allocation of
scarce resources, although not much on the allocation of organs
specifically (see the entries on
distributive justice;
equality;
justice and access to health care).
Unsurprisingly, many of the principles cited in official
transplantation allocation documents are familiar (see
Other Internet Resources:
TSANZ 2014; NHSBT 2013). These principles include allocating to those who
would benefit the most (a proxy for utility), to those who are the
sickest (a proxy for helping the worst off), to those whose medical
condition will deteriorate the soonest (urgency), and to those who
have been waiting the longest (often linked to equity). Official
documents also stress principles of non-discrimination, which are
taken to exclude allocating according to judgments of social worth, as
well as race, sex, religion etc. In practice, the principles conflict;
the person waiting the longest may not be the one who would gain the
most from a transplant, for example. So official allocation protocols
also have to say how the conflict between principles should be
resolved. (For a philosophical discussion of the principles and their
application to organ allocation see Kamm 1993.)

This article does not provide a full account of allocation principles
for organs. Rather, it aims to do three specific things. First, it
explains some of the features of allocation of organs that need to be
taken into account when applying basic principles. This section draws to
the attention of philosophers the real-world complexity of applying
abstract principles of allocation. Second, it discusses the problems
of responsibility for condition and social value. These problems are
both ethically interesting and, while not unique to organ allocation,
are more poignant than for other scarce resources because they often
cannot be avoided just by making more money available. Third, it
describes some transplantation-specific cases of the interaction
between allocation rules and the number of organs retrieved for
transplantation. These cases raise doubts about the coherence of some
actually-existing allocation practices.

3.1 The complexity of organ allocation

The allocation of organs is certainly not just a medical problem to be
solved with medical expertise (Veatch and Ross 2015). The principles
that apply to allocation are quintessentially ethical principles.
However, applying those principles correctly to produce final answers
as to who receives organs does require medical knowledge and much
other knowledge besides. To see the point, imagine that we have to
design an organ allocation scheme.

Suppose we start with first-best principles, such as allocation
according to need, or urgency, or benefit, or equity, or some mix of
these principles based on some judgment of their relative weight.
Clearly, applying these principles requires considering what organs
do. Organs differ in many ways that matter to allocation, such as

alternative treatments to transplantation, the ability to stratify
risk, the different factors that affect patient and/or graft survival,
and differences in the interactions between donor graft and recipients
on outcomes. (NHSBT 2013, p. 8)

To explain just one of these factors, nearly all patients in rich
countries whose kidneys have failed have the alternative of dialysis,
whereas most of those with acute liver failure have no alternative to
transplantation but death. Liver allocation, to a much greater extent
than kidney allocation, must thus make some judgment about the
importance of saving lives immediately compared with, for instance,
improving quality or extending lifespan.

Next, the application of the principles ought to range across all the
stages of transplantation. Details vary from place to place and organ
to organ but in general the pathway to transplantation can be thought
of as having these steps: being referred for assessment; being
assessed and then listed; and receiving an organ once listed. People
may be halted at each step, perhaps for medical reasons, perhaps
because they cannot pay (the so-called “green screen”) or
because the public system will not pay. Principles need to range over
all steps. For instance, scrupulous fairness to those on a waiting
list may obscure injustice in access to the list.

Implementing first-best principles can have important secondary
consequences. To take one example, the scheme the U.S. introduced in
1989 to allocate kidneys increased the weighting for immune system
compatibility and the effect was to reduce the proportion of
African-Americans transplanted (Elster 1992: ch. 5). Many thought the
result inequitable because of the disparate impact even though the
difference was not due to overt discrimination (see the entry on
justice, inequality, and health).

In addition, a scheme must take account of procedural values such as
transparency, non-arbitrariness, and public deliberation (Miller 1999,
ch.5). For instance, we may think that time spent waiting on a list is
only a rough proxy for fairness. Perhaps someone entered a list late
because of the difficulties in finding the time and resources to
complete the requirements for listing; in perfect fairness that person
should not be disadvantaged as a result. And yet time waiting is a
visible and checkable criterion, whereas taking account of diverse
social and economic circumstances would be procedurally fraught when
it comes to ordering a priority list.

Finally, allocation must take account of incentives in two distinct
ways. It must consider how the scheme would be operated. The ideal
application of first-best principles would require considerable
flexibility and discretion. Fixed rules or algorithms inevitably fail
to capture all the relevant information. And yet flexibility and
discretion are open to gaming by doctors and patients, for instance in
exaggerating the urgency of transplanting a patient. Thus incentive
effects may make an ideal method sub-ideal in practice.

Allocation must also consider the incentive effects of an allocation
scheme on the size of the donor pool.

This topic is discussed below.

3.2 Self-inflicted illness and social value

Two other specific allocation questions are:

Should people who have caused themselves to be in need of a
transplant by leading a “high risk” life be assigned lower
priority?

Should people who are more “socially valuable” be
assigned higher priority?

Some people increase their chances of needing a transplant organ by
leading what they know to be unhealthy lifestyles. Many of those who
smoke, or drink alcohol excessively, or eat too much know that they
are acting unhealthily (whether or not they know that smoking
increases the risks of heart and lung failure, that drinking increases
the risk of liver failure, and that obesity increases the risk of
kidney and pancreas failure). It has been suggested that such people
forfeit or weaken their claims to medical treatment (Brown 2013; Buyx
2008; Smart 1994; Walker 2010).

There is one “non-ethical” argument for this, called the Medical
Argument. According to this:

… patients with self-inflicted illness … should have
lower priority in access to health care because they are more likely
to experience poor medical outcomes. (Sharkley and Gillam 2010:
661)

On the factual premise, it seems false that as a class those with
“self-inflicted” illness would do so badly they should be
deprioritized (Munson 2002), although transplant systems often do try
to screen out those who would continue to act in ways that jeopardize
their new organs. In any case, the Medical Argument is essentially
just an application of more general cost-effectiveness criteria and
not something that requires a special ethical justification. The
arguments considered below, in contrast, are ones which claim that
(for example) heavy drinkers and smokers should have lower priority
access to organs even if they are no more likely than others
to experience poor transplant outcomes. There are three main ethical
arguments for this claim, two of which are clearly quite weak; a
third, the Restoration Argument, is worth taking more seriously.

The first argument concerns incentives. It says that if (for
example) we refuse to provide heavy drinkers with liver transplants
then this will discourage irresponsible drinking. Similar things are
said about overeating and obesity.

The argument however is problematic. To continue with alcohol, would
organ allocation policy really make much difference to people’s
drinking-behavior? Some reasons for thinking not include:

The very long-term nature of the calculation that drinkers would
be required to make. They would need to gamble on organ allocation
policies staying as they are for perhaps many decades and would need
to trade off highly speculative longer-term gains (maybe needing and
then getting an organ many years down the line) against short-term
pleasure and reward (having another drink now).

Serious liver disease ought to be incentive enough. If the
prospect of serious organ failure is not acting as an incentive then
what are the chances of allocation policy doing so?

Many heavy drinkers are dependent on alcohol and so incentives may
not engage them effectively. Similar things might be said about
smoking, illegal drug use, and even diet (Walker 2010).

Another challenge for the incentives approach is that if the rationale
for deprioritising heavy drinkers, say, is simply incentivisation then
there is no reason to restrict these measures to cases of organ
failure. Why not instead remove their driving licenses, or their
access to non-urgent healthcare, or subject them to punitive rates of
tax? Such measures could all be incentives to stop drinking
and would surely be more effective—not least because their
effects would be felt straightaway, rather than many years down the
line.

The next argument suggests that heavy drinkers and smokers should be
deprioritised on transplant waiting lists as a punishment for
wrongdoing. There are several reasons to reject such a position:

Unhealthy behavior such as excessive drinking, overeating, and
smoking may well not be morally wrong nor merit punishment.

If punishing wrongdoing is the purpose of the allocation exercise
then there are probably more deserving candidates for punishment than
those who overindulge (even if there is something morally
wrong with such overindulgence).

Using healthcare resource allocation as a mode of punishment is
impracticable and unfair, and may have adverse consequences (such as
negative effects on public attitudes to organ donation and to
doctors). Selecting only certain risky behavior as immoral seems
arbitrary. Waiving that problem, how are judgments about causal and
moral responsibility to be made in a timely and cost-effective way,
and how are doctors going to make them? Punishment should only be
meted out by state bodies (i) for prohibited acts (so not, in most
countries, drinking, overeating, and smoking) and (ii) following
“due process” in a court (Harris 1985).

A version of objection (c) applies to an opposite policy proposal:
that higher priority should be given to patients with
high social value. This “social value” could
either be instrumental (doctors, nurses, parents of young children
perhaps) or moral (prioritising the virtuous). The fundamental
objection to rewarding social value is that it infringes a
principle of equal treatment but, putting that aside, it has the
practical and fairness problems of the punishment proposal. How is
social value to be determined and then how is it to be applied in a
timely and cost-effective manner? And, given the potentially dire
consequences of being assigned low social value (which could in
practice be a “death sentence”), procedurally it seems
reasonable to expect something akin to a court hearing. A version of
allocating according to perceived social value (among other criteria)
was tried in Seattle in the 1960s in allocating very scarce dialysis.
The result seems to have removed any enthusiasm among transplant
systems for trying it again. (Alexander 1962).

Perhaps one exception to this is giving higher priority to frontline
healthcare workers in situations where such workers are themselves a
scarce resource, and where therefore there would be fewer transplants
overall if sick healthcare workers were not prioritised. The
justification here is that whereas many other “social
value” based allocation decisions are zero-sum games,
prioritising healthcare workers could instead increase the total
number of available transplants. This argument has some merit but is
not fundamentally so much about social value per se as about
the pragmatics of maximising lives saved. Thus, social value
notwithstanding, if the healthcare labor market was oversupplied and
doctors and nurses could easily be replaced then this pragmatic
argument would not apply. Conversely, this pragmatic argument could
apply to any shortage profession: e.g. in a situation where,
because of a shortage of Human Resources consultants in the health
sector, fewer operations are taking place than would otherwise be the
case.

The most promising argument in favor of deprioritising those with
“unhealthy” lifestyles is the Restoration Argument, which
goes as follows (Harris 1985; Smart 1994; S. Wilkinson 1999).

Some people (risk-takers) knowingly and voluntarily have
unhealthy and/or dangerous lifestyles.

Risk-takers are more likely to need transplant organs
than the general population (non-risk-takers).

Transplant organs are in short supply.

Because of (2) and (3), if we allocate on the basis of clinical
need or clinical outcomes alone, non-risk-takers will be
harmed by the risk-takers’ lifestyle choices;
the non-risk-takers’ chances of getting a transplant
organ will be lower because of the risk-takers’
increased demands on the system.

To allow the non-risk-takers to be harmed by the
risk-takers would be unfair. Why should
non-risk-takers have to pay the price for
risk-takers’ lifestyle choices?

In order to avoid this unfairness, risk-takers’
entitlements should be reduced such that there is no harm to the
non-risk-takers.

One of the most attractive features of this argument is that it
grounds the deprioritisation of those with unhealthy lifestyles not in
value judgments about their lifestyles, but rather in a more neutral
set of concerns about preventing harm to innocent third parties. Thus
this argument could apply regardless of whether the risk-taking
behavior in question is virtuous or vicious.

Even this argument faces difficulties though. One practical problem is
that risk-taking may not generate additional healthcare costs or
demand for organs. Indeed, some kinds of risk-taking behavior (motor
sports perhaps) could even increase the supply of high-quality
cadaveric organs available for transplant.

S. Wilkinson (1999) takes this fact as a point of departure for a
deeper critique of the Restoration Argument. He claims that, if it
turned out (as is likely) that smokers cost the U.K.’s National
Health Service less than non-smokers (because on average they
die younger) then proponents of the Restoration Argument would be
committed to the unpalatable conclusion that smokers should be given
not lower but higher priority than other patients. Otherwise
smokers would be harmed by the non-smokers’ deliberate attempts
to extend their own lives by avoiding smoking. His argument is about
financial resources but very much the same would apply to organs in
relevantly similar situations of scarcity.

Wilkinson concludes that this objection seriously weakens the
Restoration Argument. Either it is simply a reductio ad
absurdum of the Restoration Argument, in which case the argument
must be rejected wholesale. Or at least its defenders will need to
appeal to something like moral or social value in order to avoid the
argument’s unacceptable consequences—thus making it
vulnerable to some of the problems with appealing to social value noted
above (Walker 2010; S. Wilkinson 1999).

3.3 The interaction of allocation and donation

In the economy, the amount produced depends in part on how production
will be allocated, at least insofar as people respond to incentives
(see the entry on
distributive justice).
For instance, a guaranteed equal share gives no self-interested
incentive to work hard or in an efficient job. In organ
transplantation, the number of organs available also depends on how
they would be allocated. In the economy, ideal allocation principles
may have to yield to the reality of incentives, which is why it is
often thought that strict equality is precluded by concern for
efficiency. Similarly, transplantation seems to face a choice; it can
keep its ideal principles and have fewer organs or compromise them and
have more. Some examples discussed here are live donation, kidney
exchanges, directed deceased donation, priority to donors, and
priority to children. These examples are diverse so one cannot
straightforwardly tell whether practice in one is consistent with
practice in another. Nonetheless, they have in common the question:
what if the usual principles of allocation led to fewer organs being
donated than would deviating from those principles? That they have
this question in common has not been widely appreciated, which may
explain why the question has been answered in different ways in the
examples described below.

Live donation. The vast majority of live organ donations have
a designated recipient, usually a relative or friend. Usually the
designated recipient is not the person who would have got the organ if
it were allocated via the method for deceased donor organs.
Transplantation systems could refuse such offers for the sake of their
normal allocation principles—but they do not. One obvious
sufficient reason is that, if the organs were not allocated to the
person the donor designates, the donor would not donate and an organ
would be forgone.

Kidney exchange. Sometimes potential live kidney donors
cannot donate to the recipients they wish because their kidneys are
incompatible with the recipient’s body. Many systems now arrange
complicated swaps whereby pairs or more than pairs of live donors give
to each other’s recipients (Fortin 2013). Sometimes people
donate into the general pool in exchange for their preferred recipient
getting the next available deceased donor kidney. Unless the preferred
recipients would happen to get the deceased donor organ anyway under
normal allocation rules, they jump the queue. As with more common
methods of live donation, the normal allocation principles are
suspended so as not to forgo extra organs.

Directed deceased donation. The suspension of normal
allocation principles when live donation is involved often passes by
without notice. Much more controversial is directed deceased donation.
The direction can take the form of naming a recipient, as when a dying
person stipulates that she wants her organ to go to her daughter. Or
it can take the form of specifying a group either to receive or be
denied the organ. The most controversial direction has been ethnic,
when donors or their families have tried to prevent organs going to
members of certain ethnic groups (T.M. Wilkinson 2007b). On the face
of it, refusing directed donations forgoes organs for the sake of a
principle of allocation, which is the opposite of practice with live
donation. Matters are more complicated because the overall incentive
effects of accepting directed donations are unclear. However,
jurisdictions such as the U.K. have banned accepting directed donation
for reasons besides the overall effect on the organ supply
(U.K. Department of Health 2000 in
Other Internet Resources).
They have cited principles such as allocation according to need as
giving sufficient reason, independent of effect on numbers. A
consistency argument can be put to them: why do they accept deviations
from allocation according to need in the case of live donation but
reject them for deceased donation?

Priority to donors. A minority of jurisdictions give some
priority in receiving organs to those who have declared their
willingness to donate. One reason is the supposed incentive effect of
giving priority to donors of encouraging more donations. Priority
schemes have been criticized on practical grounds but some criticism
invokes principles, such as allocation according to need (Quigley et
al. 2012). As before, the principles are supposed by those who cite
them to be sufficient to defeat priority schemes even if they would
produce more organs. By contrast, the principles are not thought to
outweigh getting more organs with live donation and kidney
exchange.

Priority to children. Nearly all jurisdictions give priority
to children when allocating kidneys from deceased donors. One upshot
seems to be a reduction in the overall supply of organs, at least in
the United States (Axelrod et al. 2010). People who would have been
live donors to children do not donate when the children get rapid
access to deceased donor kidneys. Perhaps potential living donors
would rather have the child get a deceased donor organ than run the
risk for themselves; perhaps they would like to hold their kidneys in
reserve in case the children need retransplantation or other children
need them. One might think that if priority to children reduces the
number of living donors to them it should increase the number of
living donors to adults. Nonetheless, the overall effect is negative.
As before, those who endorse the principle of priority to children
have some choosing to do; how many organs are they willing to forgo
for the sake of the principle, and is the answer consistent with their
willingness to accept designated live organ donations (Wilkinson and
Dittmer 2016)? A more unpalatable choice would arise if discriminating
against children produced more organs via live donation.